L.O 1 Understand the nature and sources of English Law and the concept of natural legal persons Flashcards
What are the 2 different classifications of law?
- Public Law & Private Law.
What is Public Law?
- Concerned with the legal structure of the state and relationships between the state and individual members of the community.
- Governs the relationship between one state and another.
- Includes Constitutional Law, Administrative Law and Criminal Law.
What are the three types of public law?
Constitutional, Administrative and Criminal
What is Constitutional Law?
- Concerned with the structure of the main institutions of government and their relationship to eachother (i.e the two houses of parliament in the UK and that between central and local government )
-Also includes;
The making of treaties with foreign states.
The Status, function and powers of the Monarch, members of parliament , government ministers, the judiciary, the civil service and the armed forces.
What is Administrative Law?
- A branch of constitutional law
- Concerns the legal relationship between private citizens and the various agencies of local and central government and the impact of their activities on ordinary individuals.
Examples; - Questions of local rating
- Taxation and compulsory acquisition of land
- The powers of local boards and authorities in relation to highways
- Health and education
- Granting of licenses for various trades/professions.
What is Criminal Law?
- Criminal Law is concerned with the control of behaviour which harms or threatens peace or stability of the community.
- Control is exercised by punishing persons who commit serious wrongs which are likely to damage the interests of society as a whole. i.e even if a crime effects one person individually, if they go unchecked, it is society as a whole who is threatened.
What is Private Law?
- Governs the relationship between legal persons such as individuals, businesses and other organisations.
- Commonly known as civil law.
How does Private Law relate to Insurance?
The legal rules which govern insurance are part of the civil law. The most applicable areas are the law of contract and the law of torts; mostly relevant to liability insurance.
what are the characteristics of English Law which distinguish it from other legal systems?
- Age and continuity
- Little codification
- Judge made law
- Independence of the judiciary
- Adversarial system
- No written constitution
- Rule of law
What is meant by Age and continuity?
English law has a long history and has developed over 900 years. Many cases and statutes go back over 500 years.
What is meant by little codification?
A legal code is a systematic collection of written laws arranged so as to avoid inconsistency and overlapping.
Certain parts of English law have been codified, including criminal law. However, only a few areas of civil law has been codified - relating to sale of goods, bills of exchange and marine insurance.
However in many countries, the whole or a great deal of the law has been reduced to a series of written codes.
what is meant by judge-made law?
The decisions of judges in the superior courts have had and continue to have an effect on the growth and development of English Law. In other countries the function of a judge is merely to interpret and apply statutory codes of law. However, in England the system of binding precedent allows the decisions of judges to become part of the law itself and allows the law to on a particular subject to adapt and develop through a series of binding decisions.
what is meant by ‘independence of the judiciary’
English judges are appointed by, or on the advise of the Lord Chancellor or prime minister, but the judiciary is effectively free from the government control. Senior judges can be removed from the office before their retirement age of 70 only by a motion approved by each house of parliament.
Junior members of the judiciary can be removed by the lord chancellor only on grounds of incapacity or misbehaviour.
to summarize; Judges are therefore largely free from political interference.
What is meant by an adversarial system?
In the English legal system, a court case is between two sides.
- In civil law, this is between the claimant (plaintiff) and the defendant.
- In criminal law, this is between the prosecution and the defence.
- The court itself, consisting of the judge and sometimes a jury, remains neutral. The role of them is not to investigate but simply listen to the evidence presented and give judgement.
- In civil proceedings, the claimant has the burden of proving his case on the balance of probabilities.
- In criminal proceedings, guilt must be proven ‘beyond reasonable doubt’: this means that the court must be completely sure that the allegations made by the prosecution are true before the defendant can be convicted.
An alternative system to this is called an inquisitorial system - in which the court does not remain neutral but plays an active part in discovering the truth. The only courts in England which employ the inquisitorial procedure are the coroners court, which inquire into cases of violent, unnatural or suspicious death.
The civil procedure rules which came into force in April 1999, could be said to signal a gradual change in the role of the English courts. The rules grant courts more extensive powers to ‘manage’ cases which come before them.
What is meant by rule of law ?
- Although the constitution of the UK is unwritten, it includes what has become a ‘rule of law’. - a rather imprecise concept but is generally regarded as embracing the following principals.
- The powers exercised by a politician and officials must have proper foundation and be based on authority given to them by law.
- The law generally should be reasonably certain and predictable.
- people should be treated equally by the law.
- no one should be punished until having had a fair hearing.
- Every person should have a right of access to the courts
What does the development of the English Law refer to?
The process whereby local customs were developed into common law, I.e a system of rules which applied throughout the country. this also refers to how the development of common law ;ed to the creation of another set of rules, known as equity.
summarize the development of the common law;
After the Norman Conquest of 1066, the Normans sought to establish a strong central government and administration to reinforce their hold on the country.
- central ‘royal’ courts were developed and the king eventually had official representatives go to other parts of the country to check on the local administration and gradually adopted a judicial function.
- local variations eventually ceased.
- in 1474 the court of chancery, distinct from the kings council and the royal common law courts was formally established and presided over by the lord chancellor. The system of rules which was developed and applied in the court of chancery became known as equity. This literally means fairness, reflecting the chancellors original role as spiritual leader.
Summarize the development of equity:
- 1500’s; By the sixteenth century, the court of chancerys influence was widespread and its jurisdiction became a threat to that of the common law courts.
The conflict of the two systems came to a head in the Earl of Oxfords Case 1616. This resulted in a ruling that if there was a conflict between common law and equity, equity should prevail.
1600s; the chancery began to follow its own precedents. Equity came to have its own fixed rules and principles.
Judicature Acts 1873-75; These acts built the common law courts and the court of chancery in a single system called the supreme court of judicature (now named the senior courts of England and Wales)
What are the distinguishments between common law and equity?
- there are disagreements as to whether common law and equity are now fused into one set or if they are separate.
- common law refers to a unified system of law; that is, to the parts of our law that are contained in the decision of the courts - case law rather than statute law. (statute law consists of acts of parliament and written rules and regulations.
- equity can be described as a supplement to the common law, it is best understood as a collection of rules offering an alternative solution to some legal problems.
what are the principals and remedies which equity has given our legal systems?
- The law of trusts; The trust is a legal relationship created by a settlor through which assets are placed under the control of a trustee, for the benefit of a beneficiary or a specified purpose.
- Specific performance; a court order compelling a person to carry out a promise which they have given to another.
- Injunction; A court order compelling a person to do something or prohibiting them from doing something.
- principles of promissory estoppel; the rule that a promise can be enforceable by law where the promisee relies on that promise to their detriment.
- the principals of contribution and subrogation.
What are the two ways in which society may change?
- Social Changes
- Technological Changes.
What are social changes?
Changes in the way in which people are expected to behave.
what are technological changes?
New inventions or scientific developments which require legal control.
what are the five sources of new law?
- Legislation
- Judicial Precedent (Case law)
- Local Custom
- Legal books/ Treatises
European Community Law; the importance of which may change depending on the agreement between the united kingdom and the EU Union. Following Brexit there has been no clear indication as to what the scope of the future relationship between the UK and the EU will be.
D1; What is legislation?
legislation is law which has been created in a formal way and set down in writing. In England, the only body which has the power to make general legal rules is parliament.
The principal from which parliamentary legislation takes is Acts of Parliament or statues.
Legislation is sometimes called statute Law.
what are the three aspects which parliament consists of?
The house of commons
The house of lords
The Monarch (as a formality)
What is our Legislative process?
Green & White papers, turning into private and public bills
What are green and white papers?
The government will often consult interested parties and the general public before new legislation is introduced. This is done by publishing a green paper; inviting responses to proposed changes in the law. After these responses are taken for consideration, a further white paper is published; giving advance notice of more definite proposals. This will then be drawn up in the form of a bill.
what are the two forms of Bills and what do they do?
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Bills may be either public or private. If they pass into law they become known as public or private acts respectively.
- A public act = one which contains law affecting the whole community, such as theft acts (which are part of the general criminal law)
- A private act = on the other hand, is passed for the benefit of a particular individual, organised or group. Very often a promoter of a private bill is a local authority which is seeking the power to make compulsory purchase of land for a new local development. examples; Lloyds act 1982 and the insurance broker registration act 1977, which directly affect only members of the insurance community.
What is the procedure for the enactment of public bills?
(please note this is usually done in the house of commons and the procedure differs slightly in the house of lords.
First reading - Second reading - Committee stage - Report stage - Third reading -
What does ‘first reading’ involve?
- This is largely a formality. The clerk of the house reads out only a title of the bill to inform the members of its existence. It is then printed and published.
What does ‘second reading’ involve?
General merits of the bill are debated in the house and a vote taken as to whether it should proceed.
- Alternatively, in a procedure designed to save time, the bill is first referred to a standing second reading committee, which recommends whether or not the bill should be read a second time. This is automatically followed for public bills in the house of commons unless 20 members object, and for all private bills.
What does the committee stage involve?
If the bill survives the second reading, it will pass on to the committee stage.
- The bill is discussed by a standing committee which usually consists of about 20 to 30 members. (various parties from the house of commons).
- Amendments of the bill are voted on.
What does the report stage involve?
- The bill as amended by the committee is reported to the house as a whole. The amendments are debated and the bill may be referred back to the committee for further work.
What does the third reading involve?
The third reading offers a final opportunity for debate. In theory; amendments may be proposed but in reality only minor changes are likely to be made.
what happens after a bill has been through the house of commons?
- it then passes through the house of lords. The house of lords no longer has the power to reject a public bill - they may only delay the process.
what happens once a bill has been through the house of lords?
the Bill then receives a royal assent and is then referred to as an act or statute. this becomes a new law comes into force when it receives the royal assent.
what happens if a public bill has not completed all of its stages during a particular session of parliament or when parliament is dissolved?
It lapses. it must start its passage anew during the next session or be dropped completely. This does not apply to private bills, the passage of which may straddle two or more sessions. I.e the lloyds act 1982 - was introduced in October 1980 but was not completed until July 1982.
what does ‘codifying and consolidating acts - tidying up the law refer to?
an act may introduce a new law which is entirely new, however there will already usually be existing law under that subject, in the form of earlier statutes and case law; often there is a whole series of previous acts and regulations. The result of this series of acts and regulation can make the law appear disorganised and complex. therefore, parliament decides to tidy up the law from time to time; particularly in fields where legislation is passed frequently, i.e tax, company la etc. This tidying up can be done by consolidating acts or codifying acts.
What does ‘consolidating acts’ mean?
A consolidating act is one that repeals all previous legislation on a subject and reenacts it in one logically arranged statute. No new law is created but existing statutory enactments are brought under one ‘umbrella’.
Give two examples of consolidating acts?
The road traffic act 1988
The European parliament and council directive 2009/102/EC
(this act consolidated the previous eu directives relating to motor vehicle insurance without making major changes to the law as set out in these.
What is codifying acts?
- When the government decides not only to consolidate current legislation on a particular topic, but to also includes principles embodies in case law. As a result most or, in some cases, all the law on a particular topic including existing statute and case law is reduced to a single code. There are a number of examples in non-consumer (business) Law.
List some examples of non consumer (business) law:
- the bills of exchange act 1882
- The partnership act 1890
- The sale of goods act 1979 - The Law relating to the sale of of goods act 1893 which was subsequently amended by a number of later acts. The legislation was then consolidated in the sale of goods act 1979, since when there have been further amendments.
- The marine insurance act 1906. Consolidated previous legislation on marine insurance together with legal principles contained in around 2,000 decided cases.
what is The Law commission responsible for?
The law commission (established by The Law Commission act 1965) is responsible for the consolidation and revision of the statute law.
- has a role of reviewing the English law as a Hole and recommending ways in which it can be updated, simplified and developed. codification is part of this process.
- published reform, codification on acts such as CIDRA (the consumer insurance, disclosure and representations, act 2021 and the Insurance Act 2015.
what is Retrospective/retroactive legislation?
Is legislation which affects acts done or rights acquired before it came into effect.
What is delegated legislation?
Acts which confer such power which lay down the general framework of the government rules are called enabling acts, and rules made under the authority of those acts are known as delegated or subordinate legislation.
what are the 3 most important types of delegated legislation?
Statutory instruments, Orders in council and bye-laws.
What are statutory instruments?
Most enabling acts which give ministers and their civil servants power to enact delegated legislation, stipulate that the powers in question are to be exercised in the form of departmental regulations or orders. These are known collectively as statutory instruments
What are Orders in council
when power or special importance is delegated by statute, such as power concerning constitutional matters, it is usually conferred on the privy council.
`the privy council. includes past and present members of the cabinet (senior members of government).
What are bye-laws?
Statutory authority may be given to certain bodies, particularly local authorities, to make bye laws which are of local application. They require approval of an appropriate minister.
what implications may arise in respect of interpretation of words?
Dispute arise frequently about the meaning of words used in both primary and subordinate legislation. The claimant and prosecution will often claim the word has opposite meanings.
what happens when the meaning of a word is conflicted by the two parties?
The court will be called upon to adjudicate on the question of meaning. As a result, statute law itself is subject to some influence by the judiciary.
The judges have many aids to interpretation, which can be classified as either statutory aids or common law rules.
what are statutory aids?
1.There are certain rules of interpretation which apply to statute law generally; these are laid out by the Interpretation Act 1978 as;
- words used in the singular are deemed to include the plural and vice versa.
- The use of the masculine gender includes the feminine and vice Versa.
- the term ‘person’ is deemed to include artificial entities such as companies as well as human beings.
(These rules may be overridden in the express provisions of a particular act)
- Acts of parliament often contain an ‘interpretation’ section which gives precise definitions of important words and phrases.
- Acts of parliament have preambles or a long title setting out the general scope and purpose of the act.
what are common law rules?
There are rules which the courts themselves have developed to assist with interpretation. there are three rules of interpretation. there are also specific presumptions applied.
- the literal rule
- the golden rule
- the mischief rule
What is the common law, literal rule?
This rule takes precedence over the others. (is the primary rule)
-According to this rule, all words and phrases must be construed by the courts in their ordinary sense, and the ordinary rules of grammar and punctuation should be applied.
There are various subsidiary principles to the literal rule;
Noscitur a sociis rule; A general principle that a word must be determined by its context, and;
Ejusdem generis rule; Under this rule the meaning of any general term depends on any specific words which precede it.
These rules, and the literal rule itself, apply not only to the interpretation of the statutes but also to non consumer (business) contract such as insurance.
What is the common law, golden rule?
Where the meaning of words in a statute, if strictly applied would lead to an absurd result, and there is an alternative interpretation which avoids absurdity, the courts are entitled to choose that latter meaning and to assume that parliament did not intend the absurdity.
what is the common law, mischief rule?
Under this rule, the judge will consider the meaning of the words in the act in the light of the abuse or mischief which the act was intended to correct, and choose the interpretation which makes the act effective in suppressing this mischief. This is sometimes called the rule in heydons case, from the decision in 1584 in which it was first laid out.
What are some presumptions which apply to the construction of a statute?
There are a number of presumptions which apply to the construction of a statute, unless there are clear words to the contrary in the statute itself.
Amongst the most important are presumptions that the statute;
- Is not intended to create a ‘strict’ criminal offence (i.e, without liability or fault)
- is not intended to oust (do away with) the jurisdiction of the courts.
- is not intended to have a retrospective effect.
- applies only to the UK
- is not intended to infringe the requirements of the international law.
- does not bind the crown/government.
- Is not intended to interfere with vested (existing or estblished) rights or allow confiscation of property without compensation.
What is the effects of the human rights act on statutory interpretation?
- human rights are protected by the human rights act
- under s.3 of the human rights act the courts are obliged, where possible, to interpret statutory provisions in a way which is compatible with the rights protected in the human rights act.
- where such interpretation cannot be reached the higher courts may issue a ‘declaration of incompatibility’. Thsis does not, however, invalidate the statutory provision, nor does it place the government or parliament under legal obligation to change the offending provision.
What is the effect of the European committees act on statutory interpretation?
Under 2(4) of the European Committees act 1972, any domestic legislation is passed or to be passed to be construed by the courts and take effect subject to EC obligations. The effects of S.2 are complex, but broadly it has lead the English courts to adopt a purposive approach to interpreting domestic legislation. However, it is not known yet whether it will have the same influence over the UK Law in the future.
- This means that to achieve an interpretation consistent with EU law words may be implied into the domestic statute and or the words of the domestic statute may be given a meaning that they would not otherwise have had. In interpreting statutory provisions, the English courts are bound to take into account the judgements of the European court of justice.
who are minor civil cases dealt by? (court & judge)?
dealt with in county courts, by a circuit judge who usually sits alone.
who are major civil cases dealt by? (court) - could involve claims for substantial sums of money
first heard at one of the three devisions of the High courts.
what are the three divisions of the high court?
Chancery, family and the queens bench.
each division of the high court also has its own divisions
what does the chancery division of the high court entail?
deals with:
- company matters
- partnerships
- trusts
- mortgages
- revenue matters
whats does the family division of the high court entail?
- Matters of family law including disputes about family property
- matters concerning children such as adoption and guardianship.
what does the Queens bench division of the high court entail?
- busiest sector of the high court, most judges.
- includes; commercial court, admiralty court (shopping matters), technology and construction courts.
- ## QBD has jurisdiction over every type of common law civil action, the principal areas are contract and courts
Why do each of the divisions in the high courts have their own divisions also?
Because each division of a division hears certain appeals from the county and magistrate courts.
how does the number of judges differ between high courts (chancery, family and QBD) and their divisional courts?
A high court judge usually sits alone whereas a divisional court will usually have two or more judges.
what is dealt with by the court of appeal (civil division), how many judges?
the court of appeal doesn’t hear any cases at first instance but will hear appeals from the lower courts.
- appeals from the county court (in most cases) and the high court divisions are dealt with here.
- usually three judges but can be a ‘full court’ of 5 or 7.
what is the purpose of the final court of appeal; the Supreme Court?
- replaced the house of lords on 1st October 2001. (although the house of lords previous decisions still stand as precedent)
- the final court of appeal for all UK civil cases and criminal cases.
- Hears appeals on arguable points of law of general public importance.
- concentrates on cases of the greatest public and constitutional importance
- Maintains and develops the role of the highest court pf the UK as a leader in the common law world.
how many justices are there ?
12
